A new prescription for health-care privacy – Canadian Lawyer

Christopher Naudie

Feb 2016

As several cases related to breaches of patient privacy move through the legal system, privacy commissions across Canada are carefully examining how breaches of private patient data are treated by the courts. The issue is widespread, with cases before the courts in almost every jurisdiction.

Chris Naudie, Co-chair of Osler’s Class Actions Group, spoke with Canadian Lawyer about the Supreme Court of Canada’s denial of leave to appeal a case, which Chris says “opened the door” to privacy class actions in the health-care sector. The Supreme Court dismissed Peterborough Regional Health Centre’s application for an appeal in Hopkins v. Kay on Oct. 29. The lawyers for the plaintiffs argued that privacy breaches should not be restricted to a hearing by the Information and Privacy Commission (IPC) and they should be allowed to sue hospitals and staff members for breaches of privacy. The plaintiffs are seeking general, punitive and aggravated damages in court for the roughly 280 patient records that were allegedly improperly accessed by hospital staff between 2011 and 2012.

Chris says, “the key issue in Hopkins v. Kay was whether the statute was the only remedy available to the parties who had incurred invasion of their privacy with respect to their health-care records. The Court of Appeal said it’s not a comprehensive code and as a result, where there is an invasion of privacy in respect of health-care records, the individual plaintiff would not only have potential access to the remedy under the statute but they may also have remedies in tort - arguably much more conducive to class certification.”

The Court of Appeal decision in Jones v. Tsige offers a plaintiff suing in a tort the additional advantage of a higher threshold for damages, a limitation period of two years and the potential for punitive damages.

“From my perspective, this decision and the Supreme Court’s denial of leave has increased the exposure of health-care institutions to class actions that allege an intrusion on privacy of health-care information,” says Chris. According to the article, there are a number of health-care class actions that will now proceed to the next stage as a result of this decision.

“We've been advising our health-care clients that the exposure to a potential incursion of a patient's privacy has gone up,” says Chris. “One, because the volume of data increases daily, and two, the legal framework has changed, both from the perspective of the substantive remedies available and the potential for collective relief, because the tort is arguably much more conducive to bringing a class proceeding and when a class proceeding is brought the exposure to a potential institution is potentially massive.”

If you subscribe to Canadian Lawyer, you can learn more about privacy breaches and privacy class actions in health-care by reading Jennifer Brown’s full article, “A new prescription for health-care privacy” in the February 2016 edition.